Bill Text: VA HB838 | 2024 | Regular Session | Comm Sub
Bill Title: Police and court records; expungement, definition of "otherwise dismissed."
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Vetoed) 2024-04-17 - House sustained Governor's veto [HB838 Detail]
Download: Virginia-2024-HB838-Comm_Sub.html
Be it enacted by the General Assembly of Virginia:
1. That §19.2-392.2, as it is currently effective and as it shall become effective, of the Code of Virginia is amended and reenacted as follows:
§19.2-392.2. (Effective until date pursuant to Acts 2023, cc. 554 and 555, cl. 4) Expungement of police and court records.
A. If a person is charged with the commission of a crime, a
civil offense, or any offense defined in Title 18.2, and
1. Is (i) is acquitted, or
2. A (ii) a nolle prosequi is taken, or
(iii) the charge is otherwise dismissed, including dismissal by accord and
satisfaction pursuant to §19.2-151, he may file a petition setting forth the
relevant facts and requesting expungement of the police records and the court
records relating to the charge.
For purposes of this section, the term "otherwise dismissed" means a dismissal by the court under any circumstances and in any manner, excluding an acquittal by reason of insanity or any charge that is deferred and dismissed after a finding of facts sufficient to justify a finding of guilt.
The term "otherwise dismissed" also includes those circumstances when an initial charge is reduced or amended to another offense, including a lesser included offense or the same offense with a lesser gradient of punishment, so that such person is not convicted of the initial charge. The person then may file a petition setting forth the relevant facts and requesting expungement of the police records and the court records relating to the initial charge.
B. If any person whose name or other identification has been used without his consent or authorization by another person who has been charged or arrested using such name or identification, he may file a petition with the court disposing of the charge for relief pursuant to this section. Such person shall not be required to pay any fees for the filing of a petition under this subsection. A petition filed under this subsection shall include one complete set of the petitioner's fingerprints obtained from a law-enforcement agency.
C. The petition with a copy of the warrant, summons, or indictment if reasonably available shall be filed in the circuit court of the county or city in which the case was disposed of by acquittal or being otherwise dismissed and shall contain, except where not reasonably available, the date of arrest and the name of the arresting agency. Where this information is not reasonably available, the petition shall state the reason for such unavailability. The petition shall further state the specific criminal charge or civil offense to be expunged, the date of final disposition of the charge as set forth in the petition, the petitioner's date of birth, and the full name used by the petitioner at the time of arrest.
D. A copy of the petition shall be served on the attorney for the Commonwealth of the city or county in which the petition is filed. The attorney for the Commonwealth may file an objection or answer to the petition or may give written notice to the court that he does not object to the petition within 21 days after it is served on him.
E. The petitioner shall obtain from a law-enforcement agency one complete set of the petitioner's fingerprints and shall provide that agency with a copy of the petition for expungement. The law-enforcement agency shall submit the set of fingerprints to the Central Criminal Records Exchange (CCRE) with a copy of the petition for expungement attached. The CCRE shall forward under seal to the court a copy of the petitioner's criminal history, a copy of the source documents that resulted in the CCRE entry that the petitioner wishes to expunge, if applicable, and the set of fingerprints. Upon completion of the hearing, the court shall return the fingerprint card to the petitioner. If no hearing was conducted, upon the entry of an order of expungement or an order denying the petition for expungement, the court shall cause the fingerprint card to be destroyed unless, within 30 days of the date of the entry of the order, the petitioner requests the return of the fingerprint card in person from the clerk of the court or provides the clerk of the court a self-addressed, stamped envelope for the return of the fingerprint card.
F. After receiving the criminal history record information
from the CCRE, the court shall conduct a hearing on the petition. If the court
finds that the continued existence and possible dissemination of information
relating to the arrest of the petitioner causes or may cause
circumstances which that constitute a manifest injustice,
including any hindrance to obtain employment, an education, or credit to
the petitioner, it shall enter an order requiring the expungement of the police
and court records, including electronic records, relating to the charge.
Otherwise, it shall deny the petition. However, if the petitioner has no prior
criminal record and the arrest was for a misdemeanor violation or the charge
was for a civil offense, the petitioner shall be entitled, in the absence of
good cause shown to the contrary by the Commonwealth, to expungement of the
police and court records relating to the charge, and the court shall enter an
order of expungement. If the attorney for the Commonwealth of the county or
city in which the petition is filed (i) gives written notice to the court
pursuant to subsection D that he does not object to the petition and (ii) when
the charge to be expunged is a felony, stipulates in such written notice that
the continued existence and possible dissemination of information relating to
the arrest of the petitioner causes or may cause circumstances which
that constitute a manifest injustice, including any hindrance to obtain
employment, an education, or credit to the petitioner, the court may enter
an order of expungement without conducting a hearing. When an initial charge
has been reduced or amended to another offense for which reporting to the CCRE
is still required pursuant to §19.2-390 and an order of expungement is granted
for the initial charge, the CCRE shall amend the original arrest but maintain
the fingerprints collected from the original arrest.
G. The Commonwealth shall be made party defendant to the proceeding. Any party aggrieved by the decision of the court may appeal, as provided by law in civil cases.
H. Notwithstanding any other provision of this section, when the charge is dismissed because the court finds that the person arrested or charged is not the person named in the summons, warrant, indictment or presentment, the court dismissing the charge shall, upon motion of the person improperly arrested or charged, enter an order requiring expungement of the police and court records relating to the charge. Such order shall contain a statement that the dismissal and expungement are ordered pursuant to this subsection and shall be accompanied by the complete set of the petitioner's fingerprints filed with his petition. Upon the entry of such order, it shall be treated as provided in subsection K.
I. Notwithstanding any other provision of this section, upon receiving a copy pursuant to §2.2-402 of an absolute pardon for the commission of a crime that a person did not commit, the court shall enter an order requiring expungement of the police and court records relating to the charge and conviction. Such order shall contain a statement that the expungement is ordered pursuant to this subsection. Upon the entry of such order, it shall be treated as provided in subsection K.
J. Upon receiving a copy of a writ vacating a conviction pursuant to §19.2-327.5 or 19.2-327.13, the court shall enter an order requiring expungement of the police and court records relating to the charge and conviction. Such order shall contain a statement that the expungement is ordered pursuant to this subsection. Upon the entry of the order, it shall be treated as provided in subsection K.
K. Upon the entry of an order of expungement, the clerk of the court shall cause a copy of such order to be forwarded to the Department of State Police, which shall, pursuant to rules and regulations adopted pursuant to §9.1-134, direct the manner by which the appropriate expungement or removal of such records shall be effected.
L. Costs shall be as provided by §17.1-275, but shall not be recoverable against the Commonwealth. If the court enters an order of expungement, the clerk of the court shall refund to the petitioner such costs paid by the petitioner.
M. Any order entered where (i) the court or parties failed to strictly comply with the procedures set forth in this section or (ii) the court enters an order of expungement contrary to law, shall be voidable upon motion and notice made within three years of the entry of such order.
§19.2-392.2. (Effective pursuant to Acts 2023, cc. 554 and 555, cl. 4) Expungement of police and court records.
A. If a person is charged with the commission of a crime, a
civil offense, or any offense defined in Title 18.2, and
1. Is (i) is acquitted, or
2. A (ii) a nolle prosequi is taken, or
(iii) the charge is otherwise dismissed, including dismissal by accord and
satisfaction pursuant to §19.2-151, he may file a petition setting forth the
relevant facts and requesting expungement of the police records and the court
records relating to the charge.
For purposes of this section, the term "otherwise dismissed" means a dismissal by the court under any circumstances and in any manner, excluding an acquittal by reason of insanity or any charge that is deferred and dismissed after a finding of facts sufficient to justify a finding of guilt.
The term "otherwise dismissed" also includes those circumstances when an initial charge is reduced or amended to another offense, including a lesser included offense or the same offense with a lesser gradient of punishment, so that such person is not convicted of the initial charge. The person then may file a petition setting forth the relevant facts and requesting expungement of the police records and the court records relating to the initial charge.
B. If any person whose name or other identification has been used without his consent or authorization by another person who has been charged or arrested using such name or identification, he may file a petition with the court disposing of the charge for relief pursuant to this section. Such person shall not be required to pay any fees for the filing of a petition under this subsection. A petition filed under this subsection shall include one complete set of the petitioner's fingerprints obtained from a law-enforcement agency.
C. The petition with a copy of the warrant, summons, or
indictment if reasonably available shall be filed in the circuit court of the
county or city in which the case was disposed of by acquittal or being
otherwise dismissed and shall contain, except when not reasonably available,
the date of arrest and the name of the arresting agency. When this information
is not reasonably available, the petition shall state the reason for such
unavailability. The petition shall further state the specific criminal charge
or civil offense to be expunged, the date of final disposition of the charge as
set forth in the petition, the petitioner's date of birth, and the full name
used by the petitioner at the time of arrest. If the petition is filed under
this subsection, the petitioner shall request that the Central Criminal Records
Exchange (CCRE) electronically forward a copy of the petitioner's Virginia
criminal history record to the circuit court in which the petition was filed.
Upon receiving such request, the CCRE shall electronically forward such record
to the circuit court; however, if the circuit court is unable to receive an
electronic transmission, the CCRE shall forward a copy of such record to the
circuit court which that shall be maintained under seal by the
clerk unless otherwise ordered by the court.
D. A copy of the petition shall be served on the attorney for the Commonwealth of the city or county in which the petition is filed. The attorney for the Commonwealth may file an objection or answer to the petition or may give written notice to the court that he does not object to the petition within 21 days after it is served on him.
E. If the petition is filed under subsection B, the petitioner shall obtain from a law-enforcement agency one complete set of the petitioner's fingerprints and shall provide that agency with a copy of the petition for expungement. The law-enforcement agency shall submit the set of fingerprints to the CCRE with a copy of the petition for expungement attached. The CCRE shall forward under seal to the court a copy of the petitioner's criminal history and the set of fingerprints. Upon completion of the hearing, the court shall return the fingerprint card to the petitioner. If no hearing was conducted, upon the entry of an order of expungement or an order denying the petition for expungement, the court shall cause the fingerprint card to be destroyed unless, within 30 days of the date of the entry of the order, the petitioner requests the return of the fingerprint card in person from the clerk of the court or provides the clerk of the court a self-addressed, stamped envelope for the return of the fingerprint card.
F. After receiving the criminal history record information,
the court shall conduct a hearing on the petition. If the court finds that the
continued existence and possible dissemination of information relating to the
arrest of the petitioner causes or may cause circumstances which
that constitute a manifest injustice, including any hindrance to obtain
employment, an education, or credit to the petitioner, it shall enter an
order requiring the expungement of the police and court records, including
electronic records, relating to the charge. Otherwise, it shall deny the
petition. However, if the petitioner has no prior criminal record and the arrest
was for a misdemeanor violation or the charge was for a civil offense, the
petitioner shall be entitled, in the absence of good cause shown to the
contrary by the Commonwealth, to expungement of the police and court records
relating to the charge, and the court shall enter an order of expungement. If
the attorney for the Commonwealth of the county or city in which the petition
is filed (i) gives written notice to the court pursuant to subsection D that he
does not object to the petition and (ii) when the charge to be expunged is a
felony, stipulates in such written notice that the continued existence and
possible dissemination of information relating to the arrest of the petitioner
causes or may cause circumstances which that constitute a
manifest injustice, including any hindrance to obtain employment, an
education, or credit to the petitioner, the court may enter an order of
expungement without conducting a hearing. When an initial charge has been
reduced or amended to another offense for which reporting to the CCRE is still
required pursuant to §19.2-390 and an order of expungement is granted for the
initial charge, the CCRE shall amend the original arrest but maintain the
fingerprints collected from the original arrest.
G. The Commonwealth shall be made party defendant to the proceeding. Any party aggrieved by the decision of the court may appeal, as provided by law in civil cases.
H. Notwithstanding any other provision of this section, when the charge is dismissed because the court finds that the person arrested or charged is not the person named in the summons, warrant, indictment or presentment, the court dismissing the charge shall, upon motion of the person improperly arrested or charged, enter an order requiring expungement of the police and court records relating to the charge. Such order shall contain a statement that the dismissal and expungement are ordered pursuant to this subsection and shall be accompanied by the complete set of the petitioner's fingerprints filed with his petition. Upon the entry of such order, it shall be treated as provided in subsection K.
I. Notwithstanding any other provision of this section, upon receiving a copy pursuant to §2.2-402 of an absolute pardon for the commission of a crime that a person did not commit, the court shall enter an order requiring expungement of the police and court records relating to the charge and conviction. Such order shall contain a statement that the expungement is ordered pursuant to this subsection. Upon the entry of such order, it shall be treated as provided in subsection K.
J. Upon receiving a copy of a writ vacating a conviction pursuant to §19.2-327.5 or 19.2-327.13, the court shall enter an order requiring expungement of the police and court records relating to the charge and conviction. Such order shall contain a statement that the expungement is ordered pursuant to this subsection. Upon the entry of the order, it shall be treated as provided in subsection K.
K. Upon the entry of an order of expungement, the clerk of the court shall cause a copy of such order to be forwarded to the Department of State Police, which shall, pursuant to rules and regulations adopted pursuant to §9.1-134, direct the manner by which the appropriate expungement or removal of such records shall be effected.
L. Costs shall be as provided by §17.1-275, but shall not be recoverable against the Commonwealth. If the court enters an order of expungement, the clerk of the court shall refund to the petitioner such costs paid by the petitioner.
M. Any order entered where (i) the court or parties failed to strictly comply with the procedures set forth in this section or (ii) the court enters an order of expungement contrary to law, shall be voidable upon motion and notice made within three years of the entry of such order.
N. A petition filed under this section and any responsive pleadings filed by the attorney for the Commonwealth shall be maintained under seal by the clerk unless otherwise ordered by the court. Any order to expunge issued pursuant to this section shall be sealed and may only be disseminated for the purposes set forth in §19.2-392.3 pursuant to regulations and procedures adopted pursuant to §9.1-128 and procedures adopted pursuant to § 9.1-134.
